Citation Nr: 9928909
Decision Date: 10/06/99 Archive Date: 10/15/99
DOCKET NO. 98-01 553A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Dissatisfaction with the initial rating assigned following a
grant of service connection for varicose veins of the right
leg.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
ATTORNEY FOR THE BOARD
L. Cryan, Associate Counsel
INTRODUCTION
The veteran had active service from July 1962 to August 1966.
This case is before the Board of Veterans' Appeals (Board) on
appeal from an April 1997 rating decision by the Buffalo, New
York Regional Office (RO) of the Department of Veterans
Affairs (VA) which granted service connection for varicose
veins of the right leg and assigned a 10 percent evaluation
effective October 7, 1996. The veteran's notice of
disagreement was received in September 1997. A statement of
the case was mailed to the veteran in September 1997. The
veteran's substantive appeal was received in February 1998.
In a February 1999 rating action a 20 percent evaluation for
varicose veins of the right leg was assigned effective
October 7, 1996.
In October 1996, the veteran submitted a claim for an
increased rating for his service-connected residuals, scar,
right thigh, muscle group XIV. The RO did not, however,
consider the veteran's claim for an increased rating for
residuals, scar, right thigh, muscle group XIV. As such,
this matter is referred back to the RO for further
development.
REMAND
As noted above, after the veteran submitted his substantive
appeal in January 1998, the RO issued a February 1999 rating
decision increasing the veteran's evaluation for service-
connected varicose veins to 20 percent effective October 7,
1996. This rating was based solely on the change in
Diagnostic Code 7120, which was effective January 12, 1998.
This apparently was based on Karnas v. Derwinski, 1 Vet. App.
308, 313 (1991). However, the veteran has not been rated
for his service-connected varicose veins of the right leg
from the effective date of service connection through the
present time based on both the old and the new criteria with
a finding as to which is more favorable. In addition the
Board has reviewed the examinations and the record on which
the evaluation was based and it is unable to determine
whether the criteria for 40 percent based on Diagnostic Code
7120 before January 12, 1998 (old criteria) or the criteria
for 40 percent based on the criteria of Diagnostic Code 7120
from January 12, 1998 (new criteria) have been met.
As such, the veteran should be afforded another VA
examination for his service-connected varicose vein
disability. The examiner should be provided with the entire
claims file for review prior to the examination. The
examiner should also be given a copy of the old and the new
criteria of Diagnostic Code 7120 and he/she should report the
findings first in relationship to the old criteria and then
in relationship to the new criteria.
Finally, the Board notes that the Court recently rendered a
decision in Fenderson v. West, 12 Vet. App 119 (1999). The
Board notes that, according to Fenderson, at the time of an
initial rating, separate ratings can be assigned for separate
periods of time based on the facts found-a practice known as
"staged" ratings. In this case, the RO granted a 10
percent rating for varicose veins effective as of October 7,
1996. The RO then increased the veteran's rating to 20
percent for his service-connected varicose veins of the right
leg, effective as of October 7, 1996. As such, the RO
apparently did not find that staged ratings were warranted.
As such, when the RO reconsiders the veteran's claim, it
should consider "staged ratings".
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instructions completely.
Accordingly, this matter is Remanded for the following
action:
1. The RO should obtain and associate
with the claims file all VA records of
the veteran, not already associated with
the claims file.
2. The veteran should be afforded a VA
examination in order to determine the
current extent of his service-connected
varicose veins of the right leg. The RO
should provide to the examiner a copy of
both the old and the new rating criteria
of Diagnostic Code 7120. The examiner
should first provide his/her findings in
relationship to the old criteria and
separately in relationship to the new
criteria. The veteran's claims folder
must be made available to, and reviewed
by, the examiner prior to the
examination. The examiner should
specifically note that he/she has been
provided the claims folder and the old
and new criteria of Diagnostic Code 7120.
3. The RO should readjudicate the issue
of: the veteran's dissatisfaction with
the initial rating assigned following a
grant of service connection for varicose
veins in light of the guidance provided
in Fenderson and in accordance with
Karnas, and with consideration of the old
and new criteria. If any action is
adverse to the veteran, he should be
afforded a supplemental statement of the
case and afforded a reasonable
opportunity to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration. The veteran need take no action until he is
further informed, but he may furnish additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999). No inference should be drawn regarding the final
disposition of the claim as a result of this action.
E. M. KRENZER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).